Appeal from the United States District Court for the District of New Jersey, Civ. 83-2745-L January 6, 1986, Assigned.
Before: SEITZ, WEIS, and ROSENN, Circuit Judges.
The Wexlers appeal the judgment of the district court dismissing their claim for reimbursement of expenses incurred in sending their son, Douglas, to a series of private schools while they contested the Westfield Board of Education's evaluation of their son's handicap and proposed educational placement. They also appeal the denial of attorney's fees incurred in the proceedings challenging those placements. We have jurisdiction under 28 U.S.C. § 1291.
Douglas Wexler was unidentified as a handicapped child in 1968 and placed at the Midland School by the Westfield New Jersey Board of Education. In 1972, further tests were conducted by outside experts and Westfield's Child Study Team, the body responsible in the first instance for evaluating handicapped students and recommending and making available "a free appropriate public education" as required by the Education of All Handicapped Children Act (EAHCA), 20 U.S.C. § 1400 et seq. See N.J. Stat. Ann. §§ 18A: 4603, 46-5, 46-5.1 (West 1968 & Supp. 1985); N.J. Admin. Code & 6.28-1.3. As a result of the 1972 evaluation, Douglas was reclassified as mentally-retarded educable, and an Individualized Education Program (IEP) was developed. The Child Study Team recommended placement in the Intermediate Educable Class at the Tamaques School.
The Wexlers objected to the change in classification and placement. They obtained further medical evaluations at Westfield's expense, and kept Douglas at Midland, paying the tuition themselves.
The ensuing dispute, which eventually resulted in this action, involved frequent retesting and reevaluations by the Child Study Team as well as frequent resort to outside experts by the Wexlers. In 1975, the plaintiffs filed a petition with the Commissioner of Education seeking administrative review of the 1972 reclassification decision. The Wexlers contended that Douglas was not mentally retarded but neurologically impaired and that the Child Study Team's classification and proposed placement were therefore erroneous. The Wexlers never investigated the Tamaques program, however, or compared it to the program at Midland. We will not detail the history of the state proceedings except to note that administrative decisions were several times vacated and the case remanded because the proceedings did not comport with the due process requirements of the EAHCA.
A proper due process hearing was finally held before an administrative law judge, who rendered his decision on June 9, 1983. In the period between the filing of the petition in 1975 and the hearing in 1983, several important events occurred. In 1976, on the basis of further evaluations, the Child Study Team modified its classification to "Multiply Handicapped: Primary-Mentally Retarded-Educable; Secondary-Neurologically Impaired," but did not change its recommended placement.
By 1980, the Wexlers had unilaterally transferred Douglas to the Maplebrook School. On the basis of tests and examinations conducted in late 1980, the Child Study Team reclassified Douglas in February 1981 as "Neurologically or Perceptually Impaired: Perceptually Impaired" and recommended placement at Maplebrook with costs to be assumed by Westfield. An IEP was developed and agreed upon on March 11, 1981, and revised in September, 1981. Pursuant to that IEP, Douglas was graduated from Maplebrook School in the spring of 1982 and received a diploma from the Westfield Public Schools, at which point Westfield contends that its responsibility for Douglas' education terminated. In September 1981, the plaintiffs unilaterally placed Douglas in the Summit collegiate Studies Center in Jerusalem, Israel.
While the original petition filed with the Commissioner of Education encompassed only the 1972 decision, the Wexlers' claims for reimbursement for tuition, transportation, legal fees, and interest before the ALJ encompassed the entire period between 1972 and 1981 reclassification, plus the period between Douglas' graduation and the hearing, during which time he was at the school in Jerusalem.
The ALJ upheld the pre-1981 actions of the school board, including its classifications and proposed placements, and found that the Wexlers were not entitled to reimbursement for that period because they had voluntarily chosen not to avail themselves of the "free, appropriate public education" properly made available to them by Westfield. He also fund that since the Wexlers had unilaterally enrolled Douglas in the Summit School without objecting to the 1981 IEP, which called for graduating Douglas and issuing him a diploma, they were not entitled to reimbursement ...